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Suing For Dummies: Basic Things To Know Before Suing That Jerk

Starting up lawsuits are common occurrences nowadays. For the most part, the olden days of violence to solve money problems have been replaced with the Civil Justice System. Whether it’s collecting on a debt, or disputing a contract obligation, the following basic yet practical information may assist you in your next legal matter.

Identify the proper Defendant

It’s important to know exactly whom you are suing. This may not always be so obvious. Is it an individual or a corporation? Just because the dispute involved an individual doesn’t mean that individual is necessarily the one you have a legal claim against personally. For example, if the individual was carrying on business through a corporation, the corporation they were representing is likely the entity you would want to sue rather than the individual. However, if the individual(s) was not carrying on business through a corporation, you may likely have a claim against the individual(s) personally.

Some methods to determine if the defendant was carrying on business through a corporation or not might be by looking at a business card or any issued receipts provided to you. You may also go to their website to identify any reference to a corporate name which the company operates through.

Lastly, spell the defendant’s name correctly in your claim. If you end up winning your case and obtaining judgment but spelled the defendant’s name incorrectly in your claim (even if off by a letter) you will likely need the court’s permission to amend the judgment to reflect the proper name in order to enforce it. This costs time and money.

Is your Defendant worth Chasing?

You can’t get blood from a stone. If you’re suing an individual or corporation without any money or assets, they will likely be judgment proof. This doesn’t mean you can’t get a judgment against them. It will mean you will be unlikely to collect on that judgment. However, “lack of money” is not a defense to being sued. It’s just a disincentive for someone initiating a lawsuit due to expending time and money to get a judgment, which ultimately may not be worth the paper it’s written on if it’s uncollectable.

It’s not always easy to know for sure if a defendant will have money or not from the outset but you can look for clues. Is the defendant working (if an individual) or still carrying on business (if a corporation)? Does the defendant own a car? Pay rent? Have a mortgage? Wear nice jewelry? If these are all affirmative, there’s a chance that there may be money at the end of the tunnel to collect on at least some of the judgment.

How do I collect on my judgment?

Believe it or not, it’s pretty rare that after a judgment is ordered, the defendant will voluntarily write you a cheque. All the judgment does is give you a legal right against the defendant’s assets. It’s up to you to enforce those rights. As a result, enforcement proceedings are available to allow you to question the defendant under oath about where the defendant’s assets are, which could turn up some useful information about where funds/assets are if any. However, there is no guarantee you’ll uncover any new information and sometimes it may be clear from the very beginning that there is nothing worth pursuing from the beginning.

When should I Sue?

Last but not least, you generally have two years to sue in Ontario (not all the time). This is set out in the Limitations Act. This will give you time to consider your options. If you bring your action after two years, you may be out of luck.